Category: News Feeds

In a world where the challenges legal professionals face grow increasingly complex while their individual skill sets grow increasingly deep and narrow, in-depth collaboration with colleagues and counterparts is becoming increasingly necessary.

Collaboration between lawyers will power the legal profession, and specifically litigation, in 2020 and beyond. In fact, rainmakers who collaborate and share the business they drum up tend to end up with significantly more clients (and work) than those who instinctively hoard the work they bring in.

In a new white paper from Everlaw, take a deep dive into learning about how legal teams can become more successful collaborators, and in turn, increase their revenue.

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It always sucks to be cold-called first thing in the morning.

But if you’re an official charged with guaranteeing the safety of thousands of bar applicants and you’re asked to participate in a conference call regarding the dangerous administration of the exam during a global pandemic, you’ve got to bring your A game. And, of course, most of your agenda will involve dumb distractions, but at least make a show of it for the public.

What you definitely shouldn’t be doing is falling asleep on the job. Yet we’ve had officials appear to fall asleep not once but twice this week while hearing from applicants and concerned professionals about the administration of the bar exam. TWICE!

First Barbara Ellis of the Texas Board of Bar Examiners apparently fell asleep during a call giving us this gem of a metaphor for bar examiner responsiveness:

This was bad enough before the whole process repeated itself again in California when Mark Broughton of the State Bar Board of Trustees was caught on camera apparently dozing off:

Maybe neither of these officials were really asleep — long Zoom calls are boring and closing your eyes doesn’t necessarily mean you aren’t listening — but giving the appearance of disinterest isn’t much better. Part of having a job with these responsibilities is appearing attentive to instill confidence in the process when people are telling you about how they don’t want to die to uphold an antiquated hazing ritual.

But law professors don’t spare the hammer when students look like they’re asleep in class, so why should bar examiners be held to a lower standard? Cold call ’em.

That should straighten them away quick.

Earlier: Board Of Law Examiners: The Kings Of Wishful Thinking

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Today, plaintiffs suing Biglaw giant Jones Day will ask a key discovery question — just how much pay and performance evaluation data will they have access to to make their case?

For those who need a refresher, the purported class-action gender discrimination case alleges a “fraternity culture” at the firm and unequal pay behind the firm’s notorious “black box” compensation system. There are currently six named plaintiffs in the case (there had been seven, but one anonymous plaintiff dropped out rather than reveal her name). The plaintiffs are spread throughout the country — Nilab Rahyar Tolton, Andrea Mazingo, Meredith Williams, and Jaclyn Stahl worked in California offices of the firm, while Saira Draper was an associate in Atlanta, and Katrina Henderson was in the firm’s New York office — and a core allegation is that the same black box compensation systems kept their pay below that of men working at the firm.

Plaintiffs are seeking all the data for approximately 2,000 associates, while the firm seeks to limit the discovery to employees in seven of their offices, about 600 people.

As reported by Bloomberg Law, the firm is arguing plaintiff’s request is overbroad and burdensome and should be limited to the offices plaintiffs worked in — not the firm’s other 11 offices — and should be limited by the statute of limitations to three years of data. Predictably, plaintiffs take a broader view:

Nationwide disclosure of Jones Day’s pay, evaluation, and personnel data is necessary for them to determine whether those systems, policies, and practices have a common discriminatory effect on female associates, the plaintiffs say in a letter brief filed July 3 with the U.S. District Court for the District of Columbia.

It is also needed to conduct a valid statistical analysis of how the firm pays and otherwise treats its female lawyers compared to their male counterparts, the letter filed in advance of today’s status conference says.

The firm also says that discovery should be limited to “numeric” evaluations not the “narrative” performance data. Plaintiffs allege managing partner Stephen J. Brogan has a “totalitarian grip” on the firm’s black box compensation and enforces a “no whining policy” that prevents women from complaining about the compensation practice.

Jones Day previously lost its motion to impose Rule 11 sanctions. Judge Randolph D. Moss said, “Rule 11 is intended to deter and to punish litigation abuses. It is not a means of obtaining an early resolution of the merits of a dispute.” And he noted the pay discrimination claims “are not so frivolous or beyond-the-pale to warrant sanctions,” and discovery is necessary to determine Jones Day’s assertions.

We’ll have to see how the discovery dispute shakes out.

Earlier coverage: Jones Day Hit With Explosive Gender Discrimination Case
Jones Day Facing Second Class-Action Lawsuit Over ‘Fraternity Culture’ Of The Firm
Partner Whose Behavior Features Prominently In Jones Day Gender Discrimination Lawsuit Is Out At The Firm
Jones Day Wants Gender Discrimination Plaintiffs To Reveal Themselves To The Public
Plaintiffs Throw Shade At Jones Day In Gender Discrimination Lawsuit
Gender Discrimination Lawsuit Against Jones Day Gets Yet Another Plaintiff
Gender Discrimination Lawsuit Against Jones Day Dropped — Well, One Of Them At Least
Jones Day Gender Discrimination Case Spreads To New York
Amended Gender Discrimination Case Brings The Real Scoop On Jones Day Compensation
Jones Day To Gender Discrimination Plaintiffs: You Don’t Deserve To Be Paid On The Cravath Scale
Plaintiff Backs Out Of Gender Discrimination Lawsuit Against Jones Day Rather Than Reveal Her Name
Plaintiffs In Jones Day Gender Discrimination Case Want It To Be A Class Action
Jones Day Files For Sanctions In Ongoing Gender Discrimination Lawsuit
Jones Day Argues That Everyone’s Happier Not Knowing They’re Underpaid
Jones Day’s ‘Black Box’ Compensation One Step Closer To Being Blown Open

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

When the country first began to shelter in place due to the pandemic, I wrote a post urging lawyers to use the unexpected change to explore technology and its many benefits, both during and after the pandemic. And lo and behold, lawyers have done just that!

Over the past few months, I’ve witnessed an unprecedented change in mindset by lawyers when it comes to technology. For starters, lawyers in my community have begun to accept certain types of technologies — such as videoconferencing, e-signature, virtual notaries, and cloud computing remote working tools — with open arms. Courts have likewise rapidly adapted and encouraged the use of videoconferencing and increased e-filing.

Similarly, there have been indications that regulatory bodies are becoming increasingly open to allowing lawyers to use technology in all aspects of their practices. Certainly the tide was turning prior to the pandemic, but ethics opinions and rule changes seem to have been expedited in order to address the ethical issues that lawyers are now regularly encountering due to the influences of COVID-19 on their regular business practices.

For example, in April the Pennsylvania Bar Association issued a  much-needed opinion addressing the ethics of practicing law virtually. In Formal Opinion 2020-300, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility provided guidance on how lawyers and their staffs can ethically provide legal services while working remotely.

The Committee confirmed that it was ethical for lawyers to use cloud computing software in their practices. And, notably, the Committee was also the first to adopt the analysis set forth in ABA Formal Opinion 477R,  concluding that because of improved technology, unencrypted email is insufficient for discussing particularly sensitive information, and in those cases more secure communication methods such as encrypted email or secure online client portals will be required, a consideration of particular import during the pandemic, when face-to-face meetings are a rarity.

More recently, the New York State Bar Association green lighted a recommendation that would require New York lawyers to take one cybersecurity CLE credit every two years. Personally, I think a broader “technology” category would have been more appropriate, but it’s a step in the right direction and one more indication that the legal profession is increasingly accepting of the importance of technology to the practice of law.

Just a few weeks ago, the DC Bar Association Issued Ethics Opinion 378, wherein the Ethics Committee concluded that it was “not unethical for a lawyer to accept cryptocurrency in lieu of more traditional forms of payment, so long as the fee is reasonable.” While this was not the first ethics committee to reach this conclusion, to the best of my knowledge, only two other bar associations — in Nebraska and in New York City — have done likewise. Once again, it’s further evidence that change is afoot.

And last but not least, it was announced on Tuesday that DocuSign had acquired LiveOak, a company that provides tools to facilitate online notarization. In the article, the acquisition was aptly described as “the perfect pandemic acquisition, making a manual process digital and saving people from having to make face-to-face transactions at a time when it can be dangerous.”

It is that same impetus — to be able to transact business while avoiding in-person interaction as much as possible — that is the driving force behind the legal profession’s rapid shift in mindset when it comes to technology. And with that previously unexpected  change in mindset will come an accelerated rate of technology adoption.

It’s not going to happen overnight, but it’s happening as we speak. And the more types of technology that lawyers use to facilitate remote work, the more open they’ll be to the idea of incorporating all types of technology into their practices.

Today, lawyers are already regularly using technologies that would have been unthinkable just six months ago. So we’re already much further along than anyone could have reasonably predicted. But all signs point to an even larger trend of increased technological adoption. So much so that I feel like I can safely (and hopefully) predict that by beginning of next year, the legal profession will be practicing law like it’s the 2030s. It’s hard to imagine, but as someone who’s official job title is “Legal Technology Evangelist,” trust me — it’s been a long time coming!

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Remember last week when conservative gadflies were clutching their monkey’s paws and hoping against hope that they could see TWO open Supreme Court seats? Thomas was going to retire — like they assert every year — and the “stronger rumor” claimed Alito was also eyeing retirement. It was a weird wish for conservatives because as we all know it’s impossible to fill a Supreme Court vacancy during an election year. Mitch McConnell couldn’t have been lying to cover a dereliction of his constitutional duty back then!

But earlier today, all those conservative smiles turned upside down as Neil Gorsuch and Brett Kavanaugh joined the majority in shooting down Trump’s meritless arguments that the president never has to comply with subpoenas for his records. Clarence Thomas and Sam Alito stood alone athwart 200 years of law yelling “but not for our guy.” And, yeah, the opinions are both kind of punts and Trump is likely to succeed in running out the clock on these subpoenas until after the election, but he wanted a ruling putting a stop to these cases and he got… not that.

Thomas and Alito must have walked out of that conference wondering, “and they plan to replace us with cucks like these guys?” And if that didn’t run through the justices’ heads, it certainly is silencing all the cheerleaders eagerly pushing them out the door last week. Poor Gorsuch and Kavanaugh are getting canceled by the right… maybe Harper’s will let them whine and cry about it too.

Look, a retirement announcement probably wasn’t likely. Sitting Supreme Court justices possess all the ego required for a job of that magnitude and generally see themselves as beautiful and unique snowflakes that cannot be replaced with the next kid on the bench. But if there was any lingering belief on their part — or on the part of conservative observers — that Trump could replace their perspective, watching Bizarro Justice Garland and Justice Keggy McAssaulterton III throw the White House under the bus, it’s hard to imagine they feel that a future justice could do any better when Trump’s top two choices are already running wild.

It is a dumb stance to take.

Roberts, Gorsuch, and Kavanaugh just looked at the scoreboard and realized that it’s more important to protect the coming deep dive into Hunter Biden and Ukraineghazi than to throw it all away to bail out a White House on fire.  And, of course, a younger FedSoc appointee would absolutely help the right by locking down seats for a generation with full confidence that they would win far more battles than they would lose. However, the conservative movement generally isn’t about strategy as much as knee jerk ideological purity and that ideology is “whatever Trump wants right now.”

Maybe the justices will make a move anyway — there’s no rule requiring them to have announced after the last opinion this morning — but don’t expect the sort of hoopla envisioned last week.

Earlier: Clarence Thomas AND Samuel Alito Mulling Retirement According Conservative Wishcasters

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Ed. note: Please welcome Richard S. Amador to the pages of Above the Law. He’ll be writing about effective strategies that can be used to further diversify the legal profession.

Many law departments are revisiting efforts to diversify their outside counsel ranks by getting more lawyers of color on their cases.  A plethora of benchmarking tools, carrot-and-stick models, and consultants abound.  Many such activities require significant budgets or structural changes that can be hard for a law department to implement when already being asked to do more with less.

Below are three Big Ideas and numerous tactics to fill the gap with simple, practical steps that can be implemented from the Chief Legal Officer to the most junior associate counsel, in any size law department.  The three Big Ideas: (1) Identify and empower diversity champions in your law department; (2) Foster direct interaction with promising diverse lawyers in your space; and (3) Celebrate wins.

These ideas are based on more than 30 years of practice, most of which have been leading my own law firm while representing Fortune 500 companies and mentoring scores of minority attorneys mainly at large national law firms and in junior in-house positions.

BIG IDEA ONE: Identify And Empower Diversity Champions In Your Law Department

Candid conversations with GCs, Biglaw partners, and minority law firm owners — corroborated by even a cursory look at the data — lead to the inescapable conclusion that plans, policies, metrics, and mandates haven’t made much difference in the past 30 years.  What matters most are champions — lawyers committed to improving diversity regardless of their rank.

I’m not talking about people whose job is “diversity.”  I’m talking about working lawyers at your company with matters to handle or deals to close, who are compelled to make a difference when it comes to diversity and inclusion efforts.  In a small law department, you may be the only diversity champion. In a larger group, it might be someone at the lowest levels of the hierarchy, or a deputy GC.  The important thing is that these are lawyers responsible for selecting or working with outside counsel.  Ask your lawyers who is interested in making a difference.  You may already know who they are, but you may be surprised, so ask everyone; not all your champions will be diverse, but diversity will be personally important to each of them.

Your diversity champions can be put to work immediately. Task champions with acculturating new minority outside counsel, who will be unfamiliar with your corporate bureaucracy, traditions, and personalities. Having a champion guide new diverse counsel through these initial hurdles will increase their likelihood of successfully representing the company. This, in turn, will smooth the way for other colleagues in the law department to use these diverse outside counsel and to try new minority counsel themselves.

Urge your champions to coach these minority attorneys on your company’s approach to risk, how to navigate the billing process, and the best way to provide information in the form your business leaders prefer.

Next, encourage your champions to request minority partners and associates on their cases, and then to request them on key motions and depositions. Many of the minority associates I mentor are told by their supervising partners that you, the client, don’t want them to take depositions or argue motions.  And yet, miraculously, I’ve perhaps twice in the past 10 years had a Fortune 500 client demur when I tell them my associate is ready to take this deposition or argue that motion.  Don’t assume your relationship partners are grooming their minority associates; if it’s important to you, insist.

Also, encourage your champions to give real feedback to minority partners and associates. Numerous studies show that minorities get less substantive feedback than their white counterparts; instead, they are allowed to repeat mistakes until they are cut loose.  Tell your minority counsel when they mishandled a communication or made a bad judgment call so that they can learn. Coach them on upcoming difficult conversations — just as you would your prized protégé.

On law firm pitches, encourage your champions — and model this behavior — to call out a lack of diversity and explicitly identify it as one of the reasons for rejection when appropriate.  If necessity requires selection of a non-diverse team, insist that it be diversified going forward. When a team of lawyers appears for a pitch with a single diverse associate who has no apparent role, include that person in the Q&A and then pin down the lead attorney on exactly what the diverse associate’s role will be and how their experience will be maximized.  Hold the firm to the commitments made.

Champions are also important because, frankly, someone on your team may see a minority partner in a major law firm, or a minority-owned law firm — regardless of pedigree, record of success, and efficiency — as a “diversity hire” to be tolerated with the least important work and as little of that as possible. Champions and successes can help diverse outside counsel avoid a rocky start and have a real opportunity to prove their worth.

I’ll address below how to magnify the effect of your diversity champions by getting them out into the legal community.  But the Big Idea here is to identify and empower the diversity champions in your department, and then capitalize on their success to increase the use of minority outside counsel by the rest of the department. If you’re the sole champion, give yourself license to act, as many of the suggestions below require no budget or policy changes. If it is three lawyers among your 200-lawyer group, empower those three to be champions and check-in with them regularly on how they — and the law department — can do better.

Regularly seek feedback from your diversity champions, not just on the selection of outside counsel, but on how to do better and what the institutional barriers are to getting more work to trusted minority lawyers.  So many diversity “strategies” come from consultants, legal operations people, or vague high-level corporate directives.  Still, the people best positioned to help find success for your law department are your internal champions.

BIG IDEA TWO: Foster Direct Interaction Between Your Law Department And Promising Diverse Lawyers In Your Space

Many in-house champions have heard this frustrating refrain from a colleague: “I worked with a minority partner/firm/associate once, and it was a disaster, so I’m hesitant to try again.” Leaving aside the absurdity of such a broad conclusion on such a narrow sample size, if you can establish a track record of success, bringing others on board to using minority outside counsel will be much easier.

You’ve heard the phrase “unconscious bias.” Several studies show that decision-makers tend to give non-minority women and men the benefit of the doubt (e.g., mistakes happen, I see a lot of potential here, or she just needs some guidance) but none to minorities (e.g., I knew this wasn’t going to work, this just isn’t up to our standards, or we should never have hired him in the first place).  Your champions are less likely to succumb to these biases. And while the bar should NOT be higher for minority counsel, it is.  Thus, finding counsel who are demonstrably superior can help gain acceptance for others.

So start with the best, both in ability and client service. How to find them? Start with peer referrals.  If you already have a few great diverse outside counsel, ask them for referrals as the top pros in any field tend to know one another, at least by reputation. Ask the leadership of legal diversity organizations for referrals to those with the best reputations. The National Association of Minority and Women Owned Law Firms (NAMWOLF) has a great search tool for finding stellar minority- and women-owned law firms — all of whom already represent companies like yours and have been thoroughly vetted for quality and reputation — right on its website. The exceptional NAMWOLF staff will even pre-vet firms with specific qualifications you request.

But to maximize access to talent outside your network — and more importantly, build relationships with that talent — the best investment you can make is to get your lawyers actively engaged in organizations filled with highly qualified minority outside counsel, such as MCCA, NAMWOLF, NBA, NAPABA, HNBA, NBA, CCWC, and CMCP (search online with the acronym and “diversity,” and the organization will pop right up).  Your company probably supports multiple legal diversity organizations.  And while that financial support is crucial to the organization, buying a table or an ad doesn’t help diversify your law department or outside counsel ranks.

Law departments that excel in diversifying their outside counsel ranks (as well as internally) send their lawyers not only to join but to actively participate in organizations.

The model for this strategy is Walmart. For at least 20 years, the company has made it a priority to get lawyers from across the law department actively involved in legal diversity organizations like those listed above, building relationships with potential employees and outside counsel alike.

High-ranking minority and non-minority lawyers in the Walmart law department have served on the boards, advisory boards, and operational committees of these organizations.  This engagement provides meaningful support to the organizations, but more importantly, an avenue to work directly with minority outside counsel in the activities of the organizations.  Prudential, McDonald’s, Allstate, Honda, Accenture, Nationwide, Microsoft, and several other companies have made this a priority as well. Such engagement builds foundations of trust that are readily transferrable to engaging these lawyers as outside counsel based on having seen them in action — running meetings, speaking at events, leading volunteers, and handling conflict.

Perhaps your company is one that pays for a maximum of two or three conferences a year.  Consider allowing an extra legal diversity conference if the lawyer will commit to active involvement and reporting back on it.  You can also manage the involvement to ensure that at least one member of your team is actively engaged in each of the major legal diversity organizations.

As you and your champions connect with the best diverse lawyers, introduce them to your team through  webinars, meet & greets, and CLE.  Do some of your go-to law firms do regular CLEs? Ask them to secure at least one minority speaker for every hour of content in all internal CLEs.  Suggest that when your champions are asked to speak at conferences, they advocate for your promising diverse outside counsel be speakers as well.

As you assemble a roster of outstanding minority attorneys, ask your champions, “Who are the best of the best?” And then personally meet with those rock stars representing your company to ask: “How can we retain other diverse counsel of your caliber? How can we help you build your business? How can we help you develop rock star minority associates and junior partners in your firm?”

For high-potential minority associates, ask the relationship partner how you can help the associate make partner. Then ask the associate. For exceptional minority service partners, ask how you can help them develop business — such as by inviting them to events, to speak on panels, and referring them to peers.

Does your company offer secondments?  Insist that your team not select anyone until they have made a concerted effort to recruit a stellar minority secondee.  Consider offering mini-secondments of a few weeks where minority associates can work on internal projects and have an opportunity to build relationships while getting a view of their client’s job from the other side.

Let me tell you about my friend Rafael. He was Managing Counsel at a Fortune 500 company, overseeing employment litigation throughout the country. Several levels below the GC, he led a small team of employment lawyers.  Rafael was deeply committed to the twin goals of finding the best possible outside counsel for his company and legal diversity; he saw no conflict between them. He made it a point to meet as many diverse lawyers as he could, always looking for the best; he wouldn’t settle for less.

Rafael was particularly fond of the National Employment Law Council (NELC), which is comprised of experienced management-side employment lawyers of color. He served on committees, raised funds, and served on the board. And he was always asking for recommendations, then checking with others, “What do you think of this lawyer?”

Over several years, Rafael recruited a diverse team of enormously talented in-house lawyers and a pool of equally talented outside counsel — some at minority-owned boutiques, some at the leading white-shoe firms, some at regional shops, and some at the large employment-law-only international powerhouses — all at the top of their games.  If Rafael met and liked a minority associate at a national firm he was using, he’d request that associate on his matters or for a secondment. If you were new representing the company, he’d coach you through your initial representation. If it were your first trial for the company, he’d get you valuable visibility with decision-makers. And if you won for him, which many of us did, he’d make sure everyone knew it — both inside and outside his law department.

The key takeaway from Rafael’s experience is that he never settled for second-rate, only working with outstanding lawyers who delivered both great results and exceptional client service.  He knew the difference between perceived quality and actual quality — and always focused on the latter by constantly seeking references and gauging for himself without preconceived notions. Rafael passed away last year and left in his stead a team of diverse lawyers at the company inspired to carry on his legacy, as well as a deep bench of highly skilled diverse outside counsel with a proven record of success representing one of the pre-eminent brands in the world. He achieved the goal that every law department claims it wants, all without formal programs, surveys, metrics, hackathons, or consultants.

BIG IDEA THREE: Celebrate wins!

When a minority partner or associate wins a case or key motion, or is instrumental in a transaction, sing the praises of that specific lawyer, and your law department colleague who provided the opportunity.  Tell leaders both in the law department and the firm specifically how your outside counsel effected the win.

Celebrate minority associates by telling partners that you want to work with the associate again, and specifically requesting the associate when new matters arise.

Encourage champions to reach out to managing partners and practice leaders with kudos for stellar work by partners and associates. Ensure that company leadership knows which diverse lawyers and diversity champions — inside and outside the law department — are making the company look good, saving money, closing deals, or winning cases. Others will see that making a difference in this space increases career-enhancing access and may wish to follow suit.

Invite your best minority outside counsel — from junior associates to partners — to meet with law department leadership and your diversity champion(s), so you can both celebrate their wins and help them strengthen their client relationships.  Indeed, celebrate the wins of both your internal champions and their outside counsel. This affirms to the entire department that the champion’s behaviors are valued by leadership and that the outside minority counsel meets your standards of excellence, results, efficiency, or other paramount markers.

When you have appreciable success, toot your corporate horn by seeking legal diversity awards so that others may emulate your success. And demonstrate the internal value you place on diversity progress by name-checking, promoting, and financially rewarding your diversity champions and sharing within the department that their success in diversifying your outside counsel is one of the reasons you have done so.

Ask your best minority outside counsel if they are receiving origination credit, how you can help them do so, or otherwise gain stature in their firms or legal community.

When you speak at conferences, name-check your minority outside counsel who are present.  This makes your company and law department look good, and it helps position your outside counsel as leaders in their field.

Finally, I don’t mean to say that you should only use pre-eminent minority lawyers. There are many unheralded associates and partners with exceptional skill, or who show promise but just need some guidance or exposure.  The Big Ideas will help you find those lawyers, maximize the opportunity for them to be successful both as your counsel and in their firms, and make a real difference in the diversity of our profession.  I’ve seen it happen many times, but always because a specific person made it their priority to be intentional about championing others.

These suggestions are based on my own experience, and should not be ascribed to my firm, its clients, or my colleagues. Over the past three decades, I’ve served on the boards of the National Association of Minority & Women Owned Law Firms (NAMWOLF), Minority Corporate Counsel Association (MCCA), California Minority Counsel Program (CMCP), and National Employment Law Council (NELC). I actively mentor over 200 young attorneys of color, including associates and junior partners at small, regional, and major national/international firms, and junior in-house counsel in a wide range of industries.

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Richard S. Amador is an employment and business trial lawyer. He founded 15-attorney Sanchez & Amador in 1994. A Fellow in the National College of Labor and Employment Lawyers, Richard serves on the Executive Committee of the National Employment Law Council (NELC). Richard is a founding faculty member of the NELC Academy, an advanced-skills training program for minority junior associates practicing management-side labor and employment law. He has previously served on the boards of the Minority Corporate Counsel Association (MCCA) and the National Association of Minority and Women Owned Law Firms (NAMWOLF). Richard actively mentors dozens of law firm associates and junior partners, as well as junior in-house lawyers of color, at companies and major law firms across the U.S.

Immigration judges do not talk to the media. Trust me, I’ve tried. Generally speaking, the only ones I can get on the phone are retired judges and officers of the National Association of Immigration Judges, who always take pains to make it clear that they’re speaking in their capacity as union leaders. They do this because if they don’t, they can get in trouble with the Justice Department (which runs their agency). For many years, immigration judges were also permitted to make public speeches about immigration in their personal capacities.

Of course, that has changed under the Trump administration. In September 2017, DOJ told judges they would have to get clearance to speak in public about anything. But apparently this was not enough to erase the scourge of judges talking to law students and bar associations, so in January of this year, DOJ forbade judges from speaking in their personal capacities about anything related to immigration law or policy, or court programs or policies. If they want to talk publicly about anything else, they need DOJ’s permission.

Not surprisingly, the denials started coming thick and fast, including one that said it wasn’t clear that the judges’ “participation would advance [DOJ’s] interests.” (So that’s the purpose of free speech!) The denials also seemed inconsistent; one judge was permitted to participate in a law school moot court competition the month after another was denied permission to do the same thing.

If you remember anything about con law, you can probably predict what happened next: The judges sued to get their First Amendment rights back. In fact, their lawsuit is trying to cancel both the current never-talk-about-immigration policy and the 2017 ask-first policy. Their lawsuit goes over the numerous things the Trump administration has done to make immigration courts and immigration policy matters of public interest, which the judges (represented by the Knight First Amendment Institute at Columbia University) argue gives them a substantial interest in talking about it, and the public a substantial interest in hearing them.

This is only the latest battle in the cold war between the Trump administration and immigration judges it didn’t hire. I’ve written here about the administration’s expressly politicized hiring of judges, and elsewhere about rules that pressure judges to rush cases through the system (ideally by denying lawful status). If there’s a bright side here, it’s that the head of the NAIJ is Judge A. Ashley Tabaddor, who won a free-speech-related lawsuit against the same agency less than 10 years ago. I don’t speak for her, but I don’t imagine she’s afraid of suing her employer again.

P.S. Because I’m always happy to see evidence that somebody cares about immigrants, I’m thrilled that ATL writer Elizabeth Dye beat me to the story about the Trump administration trying to deport foreign students whose classes are online-only. If you’re following that, you may be interested to know that Harvard and MIT sued the Trump administration over that rule Wednesday morning, alleging that this rule violates — you guessed it! — the Administrative Procedure Act. The administration’s inability to govern competently will probably earn them a big fat TRO.

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Lorelei Laird is a freelance writer specializing in the law, and the only person you know who still has an “I Believe Anita Hill” bumper sticker. Find her at wordofthelaird.com.

Times are tough for alternative investment firms, relatively-speaking. (In other ways, they’re not tough at all, relatively-speaking, but just go with it.) Launches are way down. Liquidations are way up, claiming such distinguished names as Lansdowne Partners’ Developed Markets Fund, Sloane Robinson and Rothschild & Co. As such, like other hard-hit business, such as retailers, restaurants, real estate and travel, some might argue that they could really use a bailout. Unfortunately, thanks to that argument, they weren’t eligible for the sweet PPP action. On the bright side, sheer ineligibility does not appear to have been a barrier.

* A Tennessee lawyer has been censured for showing up to defend a client’s DUI charge while drunk. Maybe this was part of the lawyers defense? [Fox News]

* Country Music Group Lady A, which recently changed its name from Lady Antebellum, is embroiled in a trademark dispute with a blues singer who also goes by Lady A. [USA Today]

* Check out this interesting article on why there should be a right to an immigration attorney. [Slate]

* An attorney for a former police officer charged with aiding and abetting the killing of George Floyd has filed a motion to dismiss the charges. [Fox News]

* A judge is allowing a defamation lawsuit filed by Roy Moore over a prank by Sacha Baron Cohen to proceed. Moore should count himself lucky he wasn’t pranked by Borat, Bruno, or Ali G. [Hill]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.